Freedom of association
Encyclopedia
Freedom of association is the individual right to come together with other individuals and collectively express, promote, pursue and defend common interests.
The right to freedom of association has been included in a number of national constitutions and human rights instruments, including the European Convention on Human Rights
and the Canadian Charter of Rights and Freedoms
.
Freedom of association in the sense of workers' right to organize is also recognized in the Universal Declaration of Human Rights
and International Labor Organization Conventions, and the latter also protects collective bargaining
in the conventions on freedom of association.
The right to freedom of association is sometimes used interchangeably with the freedom of assembly
. More specifically the freedom of assembly is understood in a political context, although depending on the source (constitution
, human rights instrument, etc.) the right to freedom of association may be understood to include the right to freedom of assembly
.
" and to ensure that, once achieved, it remains "healthy and flourishing". In this regard he sees the formation of political parties as a significant manifestation of the freedom of association.
The freedom of association is however not only exercised in the political sense, but also for a vast array of interests - such as culture, recreation, sport and social and humanitarian assistance. Jeremy McBride agues that the formation of non-governmental organizations (NGOs), which he equates with civil society
, is the "fruit of associational activity".
literature. It is used to describe the concept of absolute freedom to live in a community or be part of an organization whose values or culture
are closely related to one's preferences; or, on a more basic level, to associate with any individual one chooses.
The libertarian concept of freedom of association is often rebuked from a moral
/ethical context. Under laws in such a system, business owners could refuse service to anyone for whatever reason. Opponents argue that such practices are regressive and would lead to greater prejudice
within society
. Right-libertarians sympathetic to freedom of association, such as Richard Epstein, respond that in a case of refusing service (which thus is a case of the freedom of contract) unjustified discrimination incurs a cost and therefore a competitive disadvantage. Left-libertarians argue that such refusal would place those businesses at an economic disadvantage to those that provide services to all, making them less profitable and eventually leading them to close down.
Libertarians also argue that freedom of association, in a political context, is merely the extension of the right to determine with whom to associate in one's personal life. For example, somebody who valued good manners or etiquette
may not relish associating with someone who was not decent or was uncouth. Or, those opposed to homosexuality probably would not enjoy associating with gay
people. In both instances, a person is voluntarily deciding with whom to associate, based on his/her own volition. Libertarians believe that freedom of association, in the political sphere, is not such a fanciful or unrealistic notion, since individual human beings already choose with whom they would like to associate based on a variety of reasons.
. Workers' right to freedom of association in terms of the right to form trade unions and collective bargaining is recognized separately, in Section 23.
First Amendment
identifies the rights to assemble and to petition the government
, the text of the First Amendment does not make specific mention of a right to association. Nevertheless, the United States Supreme Court held in NAACP v. Alabama
that the freedom of association is an essential part of the Freedom of Speech
because, in many cases, people can engage in effective speech only when they join with others.
, assembly
, press, petitioning government for a redress of grievances, and the free exercise of religion
. In Roberts v. United States Jaycees
, the Supreme Court held that associations may not exclude people for reasons unrelated to the group's expression. However, in the subsequent decisions of Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston
and Boy Scouts of America v. Dale
, the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view. The government cannot, through the use of anti-discrimination laws, force groups to include a message that they do not wish to convey.
. This limit on freedom of association results from Section 1981 of Title 42 of the United States Code
, as balanced against the First Amendment
in the 1976 decision of Runyon v. McCrary
.
The holding of Runyon is that the defendant private schools were free to express and teach their views, such as white separatism
, but could not discriminate on the basis of race in the provision of services to the general public. So, if the plaintiff African-American children wished to attend such private school
s, and were clearly qualified in all respects (but race) and were able to pay the fees, and were willing to attend despite the fact that the school's professed principles were inconsistent with admitting them, then the schools were required by Section 1981 to admit them. This doctrine rests on the interpretation of a private contract as a "badge" of slavery
when either party considers race in choosing the other.
Governments often require contracts of adhesion with private entities for licensing purposes, such as with Financial Industry Regulatory Authority
for stock market
trading in the 1938 Maloney Act amendments to the Securities Exchange Act of 1934
. These contracts often bar association with banned members, as can be seen in United States v. Merriam, 108 F.3d 1162.
In the international labour movement, the freedom of association is a right identified under international labour standards as the right of workers to organize and collectively bargain
. Freedom of association, in this sense, is recognized as a fundamental human right by a number of documents including the Universal Declaration of Human Rights
and International Labor Organization Convention C87
and Convention C98
-- two of the eight fundamental, core international labour standards. 'Freedom of association' can also refer to legal bans on private contracts negotiated between a private employer and their employees requiring workers at a particular workplace to join a union as a term and condition of employment. Supporters of this sort of private freedom of association claim that the right to join a union incorporates a right not to join a union. In the United States
, the term 'right to work' is more common for this type of law.
The right to freedom of association has been included in a number of national constitutions and human rights instruments, including the European Convention on Human Rights
Article 11 ECHR
Article 11 of the European Convention on Human Rights protects the right to freedom of assembly and association, including the right to form trade unions, subject to certain restrictions that are "in accordance with law" and "necessary in a democratic society".-Case law:*Plattform "Ärzte für das...
and the Canadian Charter of Rights and Freedoms
Canadian Charter of Rights and Freedoms
The Canadian Charter of Rights and Freedoms is a bill of rights entrenched in the Constitution of Canada. It forms the first part of the Constitution Act, 1982...
.
Freedom of association in the sense of workers' right to organize is also recognized in the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
and International Labor Organization Conventions, and the latter also protects collective bargaining
Collective bargaining
Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...
in the conventions on freedom of association.
The right to freedom of association is sometimes used interchangeably with the freedom of assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
. More specifically the freedom of assembly is understood in a political context, although depending on the source (constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
, human rights instrument, etc.) the right to freedom of association may be understood to include the right to freedom of assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
.
Democracy and civil society
Jeremy McBride argues that respect for the freedom of association by all public authorities and the exercising of this freedom by all sections of society are essential both to establish a "genuine democracyDemocracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
" and to ensure that, once achieved, it remains "healthy and flourishing". In this regard he sees the formation of political parties as a significant manifestation of the freedom of association.
The freedom of association is however not only exercised in the political sense, but also for a vast array of interests - such as culture, recreation, sport and social and humanitarian assistance. Jeremy McBride agues that the formation of non-governmental organizations (NGOs), which he equates with civil society
Civil society
Civil society is composed of the totality of many voluntary social relationships, civic and social organizations, and institutions that form the basis of a functioning society, as distinct from the force-backed structures of a state , the commercial institutions of the market, and private criminal...
, is the "fruit of associational activity".
Libertarian
Freedom of association is a term popular in libertarianLibertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...
literature. It is used to describe the concept of absolute freedom to live in a community or be part of an organization whose values or culture
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
are closely related to one's preferences; or, on a more basic level, to associate with any individual one chooses.
The libertarian concept of freedom of association is often rebuked from a moral
Moral
A moral is a message conveyed or a lesson to be learned from a story or event. The moral may be left to the hearer, reader or viewer to determine for themselves, or may be explicitly encapsulated in a maxim...
/ethical context. Under laws in such a system, business owners could refuse service to anyone for whatever reason. Opponents argue that such practices are regressive and would lead to greater prejudice
Prejudice
Prejudice is making a judgment or assumption about someone or something before having enough knowledge to be able to do so with guaranteed accuracy, or "judging a book by its cover"...
within society
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
. Right-libertarians sympathetic to freedom of association, such as Richard Epstein, respond that in a case of refusing service (which thus is a case of the freedom of contract) unjustified discrimination incurs a cost and therefore a competitive disadvantage. Left-libertarians argue that such refusal would place those businesses at an economic disadvantage to those that provide services to all, making them less profitable and eventually leading them to close down.
Libertarians also argue that freedom of association, in a political context, is merely the extension of the right to determine with whom to associate in one's personal life. For example, somebody who valued good manners or etiquette
Etiquette
Etiquette is a code of behavior that delineates expectations for social behavior according to contemporary conventional norms within a society, social class, or group...
may not relish associating with someone who was not decent or was uncouth. Or, those opposed to homosexuality probably would not enjoy associating with gay
Gay
Gay is a word that refers to a homosexual person, especially a homosexual male. For homosexual women the specific term is "lesbian"....
people. In both instances, a person is voluntarily deciding with whom to associate, based on his/her own volition. Libertarians believe that freedom of association, in the political sphere, is not such a fanciful or unrealistic notion, since individual human beings already choose with whom they would like to associate based on a variety of reasons.
South African Constitution - Bill of Rights
The South African Constitution's Bill of Rights enshrines the right to freedom of association in Section 18, which states “Everyone has the right to freedom of association.” Furthermore Section 17 states “Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions”, effectively enshrining the right freedom of assemblyFreedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
. Workers' right to freedom of association in terms of the right to form trade unions and collective bargaining is recognized separately, in Section 23.
United States Constitution
While the United States Constitution'sUnited States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
identifies the rights to assemble and to petition the government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
, the text of the First Amendment does not make specific mention of a right to association. Nevertheless, the United States Supreme Court held in NAACP v. Alabama
NAACP v. Alabama
National Association for the Advancement of Colored People v. Alabama, 357 U.S. 449 , was an important civil rights case brought before the United States Supreme Court....
that the freedom of association is an essential part of the Freedom of Speech
Freedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
because, in many cases, people can engage in effective speech only when they join with others.
Intimate association
A fundamental element of personal liberty is the right to choose to enter into and maintain certain intimate human relationships. These intimate human relationships are considered forms of "intimate association." The paradigmatic example of "intimate association" is the family.Expressive association
Expressive associations are groups that engage in activities protected by the First Amendment—speechFreedom of speech
Freedom of speech is the freedom to speak freely without censorship. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used...
, assembly
Freedom of assembly
Freedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
, press, petitioning government for a redress of grievances, and the free exercise of religion
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
. In Roberts v. United States Jaycees
Roberts v. United States Jaycees
Roberts v. United States Jaycees, , was an opinion of the Supreme Court of the United States overturning the United States Court of Appeals for the Eighth Circuit's application of a Minnesota antidiscrimination law, which had permitted the United States Junior Chamber to exclude women from full...
, the Supreme Court held that associations may not exclude people for reasons unrelated to the group's expression. However, in the subsequent decisions of Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston
Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston
Hurley v. Irish American Gay, Lesbian, and Bisexual Group of Boston, 515 U.S. 557 , is a landmark decision of the Supreme Court of the United States regarding the right to assemble and for groups to determine what message is actually conveyed to the public...
and Boy Scouts of America v. Dale
Boy Scouts of America v. Dale
Boy Scouts of America et al. v. Dale, , was a case of the Supreme Court of the United States overturning the New Jersey Supreme Court's application of the New Jersey public accommodations law, which had forced the Boy Scouts of America to readmit assistant Scoutmaster James Dale...
, the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view. The government cannot, through the use of anti-discrimination laws, force groups to include a message that they do not wish to convey.
Limitation
However, the implicit First Amendment right of association in the U.S. Constitution has been limited by court rulings. For example, it is illegal in the United States to consider race in the making and enforcement of private contracts other than marriage or taking affirmative actionAffirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
. This limit on freedom of association results from Section 1981 of Title 42 of the United States Code
United States Code
The Code of Laws of the United States of America is a compilation and codification of the general and permanent federal laws of the United States...
, as balanced against the First Amendment
First Amendment to the United States Constitution
The First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
in the 1976 decision of Runyon v. McCrary
Runyon v. McCrary
Runyon v. McCrary, 427 U.S. 160 , was a case heard before the United States Supreme Court which held that federal law prohibited private schools from discriminating on the basis of race...
.
The holding of Runyon is that the defendant private schools were free to express and teach their views, such as white separatism
White separatism
White separatism is a separatist political movement that seeks separate economic and cultural development for white people. White separatists generally claim genetic affiliation with Anglo-Saxon cultures, Nordic cultures, or other white European cultures...
, but could not discriminate on the basis of race in the provision of services to the general public. So, if the plaintiff African-American children wished to attend such private school
Private school
Private schools, also known as independent schools or nonstate schools, are not administered by local, state or national governments; thus, they retain the right to select their students and are funded in whole or in part by charging their students' tuition, rather than relying on mandatory...
s, and were clearly qualified in all respects (but race) and were able to pay the fees, and were willing to attend despite the fact that the school's professed principles were inconsistent with admitting them, then the schools were required by Section 1981 to admit them. This doctrine rests on the interpretation of a private contract as a "badge" of slavery
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
when either party considers race in choosing the other.
Governments often require contracts of adhesion with private entities for licensing purposes, such as with Financial Industry Regulatory Authority
Financial Industry Regulatory Authority
In the United States, the Financial Industry Regulatory Authority, Inc., or FINRA, is a private corporation that acts as a self-regulatory organization . FINRA is the successor to the National Association of Securities Dealers, Inc. ...
for stock market
Stock market
A stock market or equity market is a public entity for the trading of company stock and derivatives at an agreed price; these are securities listed on a stock exchange as well as those only traded privately.The size of the world stock market was estimated at about $36.6 trillion...
trading in the 1938 Maloney Act amendments to the Securities Exchange Act of 1934
Securities Exchange Act of 1934
The Securities Exchange Act of 1934 , , codified at et seq., is a law governing the secondary trading of securities in the United States of America. It was a sweeping piece of legislation...
. These contracts often bar association with banned members, as can be seen in United States v. Merriam, 108 F.3d 1162.
Organized labour
The organization of labor was commonly resisted during the 19th century, with even relatively liberal countries such as the United Kingdom banning it for various periods (in the UK's case, between 1820 and 1824).In the international labour movement, the freedom of association is a right identified under international labour standards as the right of workers to organize and collectively bargain
Collective bargaining
Collective bargaining is a process of negotiations between employers and the representatives of a unit of employees aimed at reaching agreements that regulate working conditions...
. Freedom of association, in this sense, is recognized as a fundamental human right by a number of documents including the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
and International Labor Organization Convention C87
Freedom of Association and Protection of the Right to Organise Convention, 1948
The Convention concerning Freedom of Association and Protection of the Right to Organise or Freedom of Association and Protection of the Right to Organise Convention is an International Labour Organization Convention...
and Convention C98
Right to Organise and Collective Bargaining Convention, 1949
The Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively or Right to Organise and Collective Bargaining Convention is an International Labour Organization Convention. It is one of 8 ILO fundamental conventions.- Ratifications:-External...
-- two of the eight fundamental, core international labour standards. 'Freedom of association' can also refer to legal bans on private contracts negotiated between a private employer and their employees requiring workers at a particular workplace to join a union as a term and condition of employment. Supporters of this sort of private freedom of association claim that the right to join a union incorporates a right not to join a union. In the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, the term 'right to work' is more common for this type of law.
See also
- Civil libertiesCivil libertiesCivil liberties are rights and freedoms that provide an individual specific rights such as the freedom from slavery and forced labour, freedom from torture and death, the right to liberty and security, right to a fair trial, the right to defend one's self, the right to own and bear arms, the right...
- Free State ProjectFree State ProjectThe Free State Project is a political movement, founded in 2001, to recruit at least 20,000 libertarian-leaning people to move to New Hampshire in order to make the state a stronghold for libertarian ideas....
- Freedom of assemblyFreedom of assemblyFreedom of assembly, sometimes used interchangeably with the freedom of association, is the individual right to come together and collectively express, promote, pursue and defend common interests...
- Libertarian socialismLibertarian socialismLibertarian socialism is a group of political philosophies that promote a non-hierarchical, non-bureaucratic, stateless society without private property in the means of production...
- Right to workRight to workThe right to work is the concept that people have a human right to work, or engage in productive employment, and may not be prevented from doing so...
- Self-determinationSelf-determinationSelf-determination is the principle in international law that nations have the right to freely choose their sovereignty and international political status with no external compulsion or external interference...
- Free associationFree association (communism and anarchism)In the anarchist, Marxist and socialist sense, free association is a kind of relation between individuals where there is no state, social class or authority, in a society that had abolished the private property of means of production...
- Freedom of Association and Protection of the Right to Organise Convention